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H
EBERLE, BERLIN, KADING, TURNBOW & McKLVEEN,
CHARTERED
STEPHEN A. BRADBURY
SENT VIA HAND DELIVERY
ATTORNEYS AND COUNSELORS AT LAW
CAPITOL PARK PLAZA
300 NORTH SIXTH STREET
POST OFFICE BOX 1368
BOISE, IDAHO 83701
July 15, 1994
Shari Stiles
Planning and Zoning Administrator
City of Meridian
33 East Idaho
Meridian, ID 83642
TELEPHONE
(208) 344-8535
FACSIMILE
(208) 344-8542
JAMES L. BERLIN
OF COUNSEL
T. H. EBERLE (1922.1977)
Re: Dakota Ridge Estates Subdivision Development Agreement
Dear Ms. Stiles:
As you know, I have been working with Andy Byron in connection
with the above referenced project. Andy has asked me to deliver to
you the enclosed Development Agreement for review prior to
consideration by the Mayor and City Council at their meeting of
July 19, 1994. Please note that I have not included Exhibit A, the
legal description, or Exhibit C, the plat, since those documents
are still being prepared by the project engineer, Roylance &
Associates, P.A., and I wanted you to have ample opportunity to
review the enclosed and make any comments or suggestions you may
have. The legal description and the plat will be delivered to your
office just as soon as they have been completed.
Once you have had an opportunity to review the enclosed, and
should you have any questions or concerns or should you wish to
discuss the proposal in greater detail, please feel free to give me
a call.
Very truly yours,
i'
STEPHEN A. BRADBURY
SAB: jkr
Enclosure
cc: Andy Byron
Wayne Crookston
DEVELOPMENT AGREEMENT
THIS AGREEMENT, made and entered into this day of
, 1994, and the between the CITY OF MERIDIAN, A
MUNICIPAL CORPORATION of the State of Idaho, party of the first
part, hereinafter called the "CITY", and AVENUE ONE, a California
general partnership, party of the second part, hereinafter called
the "DEVELOPER", whose address is P.O. Box 5465, Sherman Oaks,
California 91413.
WITNESSETH:
WHEREAS, DEVELOPER is the sole owner, in law and/or equity, of
a certain tract of land in Ada County, State of Idaho, described in
Exhibit "A," which is attached hereto and by this reference
incorporated herein as if set forth in full; and
WHEREAS, the State of Idaho legislature, in 1991, passed Idaho
Code 67-6511A, Development Agreements, which provides that cities
may enter into development agreements with developers upon rezoning
of land; and
WHEREAS, the CITY has passed two development agreement
ordinances, one when land is rezoned, 11-2-416 L, and one when land
is annexed, which is when it is also rezoned, 11-2-417 D; and
WHEREAS, the DEVELOPER has submitted an application for
annexation and zoning, or an application for rezone, of that
certain property described in Exhibit "A," and requested zoning of
DEVELOPMENT AGREEMENT Page -1
July 15, 1994
R-4 and has submitted a subdivision preliminary plat for said
property which has been recommended for approval by the Meridian
Planning and Zoning Commission; and
WHEREAS, the DEVELOPER made some representations at the public
hearing before the Meridian Planning and Zoning Commission as to
how the land would be developed and what improvements would be
made; and
WHEREAS, the CITY has authority to place conditions and
restrictions upon annexation or rezoning of property;
WHEREAS, DEVELOPER deems it to be in its best interest to be
able to enter into this agreement and acknowledges that this
agreement was entered into voluntarily and at its urging and
request; and
WHEREAS, the DEVELOPER, as sole owner of said land, has made
request to the CITY of Meridian to have the same annexed to said
CITY, or rezoned, and has submitted to the CITY a Plat thereof
which has been approved for annexation by the CITY and as part of
the annexation or rezone the CITY adopted and approved Findings of
Fact and Conclusions of Law; and
WHEREAS, the Findings of Fact and Conclusions of Law required
that the DEVELOPER enter into a Development agreement; and
WHEREAS, the said City Council in the Findings of Fact and
Conclusions of Law annexed or rezoned the property subject to
DEVELOPMENT AGREEMENT Page -2
July 15, 1994
deannexation if the DEVELOPER did not enter into a Development
Agreement.
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
DEVELOPER agrees, and hereby binds his, its, or their heirs,
successors and assigns to this agreement, in consideration for the
annexation, rezone, or the non-deannexation of the area, as
follows:
1. That the above recitals are contractual and binding and
are incorporated herein as if set forth in full.
2. That DEVELOPER, in accordance with its representations
before the CITY, shall, on the land described in Exhibit
"A", only construct single-family houses, all such
single-family houses shall have at least 1,400 square
feet of floor space, exclusive of garages.
3. That the property zoned R-4, described in Exhibit "A",
shall have lot sizes of at least 8,000 square feet, which
is the size represented at the CITY hearings, and shall
meet all of the requirements of the R-4 zone and have no
duplex units, town houses, or patio homes constructed on
said property.
4. That there shall be no change to increase the number of
lots or the size of lots as shown in the preliminary plat
submitted with the request for annexation, zoning and
DEVELOPMENT AGREEMENT Page -3
July 15, 1994
preliminary plat approval, which is incorporated herein
as if set forth in full herein.
5. That DEVELOPER will, before annexation, or deannexation,
file or cause to be filed with the City Engineer, a
complete set of "Subdivision Improvement Plans" showing
all streets, utilities, pressurized irrigation
facilities, sewer, water, drainage, street and other
similar signing and barricades, and other such
improvements contemplated within the subdivision, which
Plans and all improvements shown thereon shall meet the
approval of the City Engineer. The Subdivision
Improvement Plan, or Plans supplemental thereto, shall
also show the proposed location of pressurized irrigation
facilities within or that may affect or be affected by
the development. Said Subdivision Improvement Plans are
incorporated herein and made a part hereof by reference.
6. That DEVELOPER will, at his or their own expense,
construct and install all sanitary sewers, storm drains,
pumping stations, water mains and appurtenances, fire
hydrants, curbs and gutters, pressurized irrigation
system, electrical transmission lines, natural gas lines,
telephone lines, sidewalks, cross drains, street, street
surfacing, street signs, and barricades as well as any
and all other improvements shown on the Subdivision
DEVELOPMENT AGREEMENT Page -4
July 15, 1994
Improvement Plans. DEVELOPER shall also install
telephone, electrical power, gas lines, and television as
required for the development.
7. That DEVELOPER will construct and install all such
improvements in strict accordance with the filed and
approved plat and Subdivision Improvement Plans, and the
City Standard Engineering Drawings and Standard
Engineering Specifications current and in effect at the
time the construction of said improvements is
accomplished, or as otherwise agreed between the
DEVELOPER and the CITY if the standards and
specifications are more restrictive and onerous at the
time of construction than at the time of execution of
this Agreement.
8. That DEVELOPER will provide the City Engineer with at
least fifteen (15) days advance written notification of
when and of what portion, or portions, of said
improvements he intends to complete and the time schedule
therefor; and agrees to make such modifications and/or
construct any temporary facilities necessitated by such
phased construction work as shall be required and
approved by the City Engineer.
9. That DEVELOPER will have "corrected" original drawings of
the Subdivision Improvement Plans of all said
DEVELOPMENT AGREEMENT Page -5
July 15, 1994
improvements prepared by a Registered Professional
Engineer and will provide the CITY with said Plans or a
duplicate mylar copy of said Plans. The Subdivision
Improvement Plans of the proposed improvements shall be
"corrected" to show the actual constructed location (both
horizontally and vertically) of the various water and
sewer lines, all utility lines, and pressurized
irrigation lines and their individual building service
lines, the curb and gutter alignment and grades, etc.
The "corrected" subdivision Improvement Plans shall
include a "Certification" thereon, signed by the
Registered Professional Engineer in charge of the work,
that said Plans of the various improvements are true and
correct and that he (the Registered Professional
Engineer) has inspected the construction of the various
improvements (water lines, sanitary sewer lines,
pressurized irrigation lines, gas lines, electricity
lines, storm drain lines, curb and gutter, street paving,
etc.) and that the materials for and the installation of
the same were all done in conformance with the applicable
City Standard Engineering Drawings and Standard
Engineering specifications governing the construction of
these facilities.
DEVELOPMENT AGREEMENT Page -6
July 15, 1994
10. That DEVELOPER will, immediately upon the completion of
any such constructed portion, portions, or the entirety
of said development, notify the City Engineer and request
his inspection and written acceptance of such completed
improvements.
11. That DEVELOPER agrees, that upon a finding by the City
Council, duly entered in the official minutes of the
proceedings of the City Council, that a portion, or
portions, or the entirety of said improvements need to be
completed in the interest of the health, welfare and/or
safety of the inhabitants of the CITY, the DEVELOPER will
thereupon, within a reasonable time, construct said
needed improvements, or, if he does not so construct
within a reasonable time after written notification of
such Council action, and the CITY thereafter determines
to construct, and does construct such improvement, or
improvements, the DEVELOPER will pay to the CITY the cost
of such construction, in such manner and under such terms
as the CITY shall order after conference with the
DEVELOPER. Provided, however, the City Council shall not
make the finding set forth in this paragraph except at a
regular or special meeting of the City Council and unless
the DEVELOPER has been notified in writing of the time
and place of such meeting at least three (3) days prior
DEVELOPMENT AGREEMENT Page -7
July 15, 1994
thereto and has been given an opportunity to be present
in person or by counsel, and to be heard on the merits of
the proposed finding.
12. That DEVELOPER shall, at the request of the CITY, convey
to the CITY or to Joint School District No. 2 (Meridian
School District), as the CITY may direct, approximately
four (4) acres of its real property in the location and
configuration as is depicted on Exhibit "C" attached
hereto and incorporated herein by this reference for use
by the CITY and/or the Meridian School District as a park
and/or school site. Such conveyance shall be made
without cost to the CITY or the Meridian School District
except such closing costs and recording fees as are
normally incurred in a transaction of such nature, all of
which shall be paid by the entity taking title to the
said property. The covenant contained in this paragraph
shall be binding upon DEVELOPER for a period of three ( 3 )
years from the date of this Agreement after which time
the DEVELOPER'S obligations as described herein shall be
of no further force or effect.
13. That DEVELOPER agrees that upon his, its, or their,
having received written notification from the City
Engineer, that any of the requirements herein specified
have not been complied with, that the CITY shall have the
DEVELOPMENT AGREEMENT Page -8
July 15, 1994
right to withhold the issuance of any Certificates of
Occupancy within such annexed area and/or shall have the
right to withhold the providing of culinary water service
to any part, parcel, or portion of such annexed area
until such time as all requirements specified herein have
been complied with; provided, however, the DEVELOPER
shall have the right to appear before the City Council at
any regular meeting after any Certificate of Occupancy or
any water service shall have been withheld for reasons
set forth in this paragraph, and shall have the right to
be heard as to why such Certificate of Occupancy should
be issued or water service allowed. The Council shall
then decide whether said Certificate of Occupancy shall
be issued or water service to said property allowed, and
its decision shall be final, except that the rights of
the parties are preserved at law and equity.
14. Developer agrees that in the event any of the
improvements required herein are not timely installed,
the CITY may, at its sole option, install the
improvements and declare the entire cost of said
improvements to be immediately due and payable and may
seek to collect such sums in the manner provided by law,
or may pursue any other remedy set forth herein or as may
be available in law or equity. In the event of such
DEVELOPMENT AGREEMENT
July 15, 1994
Page - 9
declaration, all sums due shall bear interest at a rate
of the prime interest rate of First Security Bank of
Idaho, plus five percent (5%) per annum, until paid.
15. That DEVELOPER agrees to, and does hereby, grant a
security interest in the land which is the subject of
this Agreement, to secure the installation of all
improvements including, but not limited to, sewer, water,
irrigation and drainage piping, pressurized irrigation
system, landscaping and berming, and fencing. In the
event of DEVELOPER's failure to complete such
installation, the CITY may install such improvements and,
without notice, foreclose this Agreement as a mortgage in
accordance with the mortgage foreclosure laws of the
State of Idaho; provided further that upon request of
DEVELOPER, the CITY will execute and deliver a partial
release of the lien created herein against all or any
portion of the subject land, upon completion of that
portion of the total improvements installed which relates
to the percentage of improvements that have been
installed as compared to the total amount of
improvements.
The CITY further agrees that upon request of
DEVELOPER, the CITY will, by written agreement,
subordinate the lien created hereby, to any mortgage,
DEVELOPMENT AGREEMENT Page - 10
July 15, 1994
deed of trust, or other security device required to
secure the payment of any loan or advance made to
DEVELOPER for the sole purpose of financing the
construction of improvements upon the land which is the
subject of this Agreement; provided, however, that the
financing entity shall first warrant and represent in
writing that it understands that the contemplated loan or
advances will be used solely for the construction of
improvements upon the land and that it will take
reasonable precautions usual and customary to the
financing and lending industry to ensure that the loan
proceeds or advances will not be used for any other
purpose.
The CITY may also require surety bonds, irrevocable
letters of credit, cash deposits, certified checks or
negotiable bonds, as allowed under 11-9-606 C of the
Revised and Compiled Ordinances of the CITY of Meridian,
to insure the installation of the improvements, and the
DEVELOPER agrees to provide such, if required by the
CITY.
16. That DEVELOPER agrees that those portions of the water
main or the sanitary sewer line, for which the CITY has
expressly agreed to enter into a latecomers agreement, if
any, for including any water or sewer line extensions,
DEVELOPMENT AGREEMENT Page - 11
July 15, 1994
increased line size or capacity, are required because of
future service needs originating from properties not
owned by DEVELOPER and located within the vicinity of the
subject development; that sound planning requires
construction thereof at the present time in order to
accommodate future expansion and development. In
recognition of the cost savings which can be accomplished
by construction of such excess capacity and/or
improvements concurrently with the facilities to be
constructed for DEVELOPER's purposes, and the
impracticality or impossibility of constructing such
excess capacity and/or improvements separately or at a
later time, DEVELOPER agrees to design and construct such
facilities subject to the CITY's agreement to enter into
a latecomer agreements to reimburse DEVELOPER for a
portion of the costs of such excess capacity. DEVELOPER
agrees to obtain three independent bona fide bids for the
performance of such work from qualified and responsible
contractors and shall deliver copies of such bids to the
CITY prior to the commencement of such work. Such bids
shall be solicited and itemized in a manner which allows
clear and specific identification of that portion of the
construction work for which the CITY may possibly agree
to enter into a latecomers agreement. The CITY's
DEVELOPMENT AGREEMENT Page - 12
July 15, 1994
obligation to enter into a latecomers agreement to help
DEVELOPER to pay for such costs shall be limited to the
lowest of such bids irrespective of whether the lowest
bidder is in fact selected by DEVELOPER to perform the
work.
17. That DEVELOPER agrees that no Certificates of Occupancy
will be issued until all improvements are completed,
unless the CITY and the DEVELOPER have entered into an
addendum agreement stating when the improvements will be
completed in a phased development; in any event no
Certificates of Occupancy shall be issued in any phase in
which the improvements have not been installed,
completed, and accepted by the CITY.
18. That DEVELOPER agrees, in recognition of the unique and
peculiar circumstances relative to this development, to
the special conditions set forth in Exhibit "B" attached
hereto and by this reference made a part hereof; and
agrees to construct a perimeter fence around the entire
parcel prior to any construction, except where roadways
and streets for access are located and except where the
CITY has agreed that such fencing is not necessary.
DEVELOPMENT AGREEMENT Page - 13
July 15, 1994
19. That DEVELOPER agrees that any notice required by this
Agreement shall be given at the following address:
CITY OF MERIDIAN: DEVELOPER:
City Engineer Andrew D. Byron
City of Meridian 3431 E. Gloucester
33 E. Idaho Boise, Idaho 83706
Meridian, Idaho 83642
20. That DEVELOPER agrees to pay all recording fees necessary
to record this Agreement with the Ada County Recorder's
office.
21. All covenants and conditions set forth herein shall be
appurtenant to and run with the land and shall be binding
upon DEVELOPER's heirs, successors or assigns.
22. This Agreement shall become valid and binding only upon
its approval by the City Council and execution by the
Mayor and City Clerk.
23. That DEVELOPER agrees to abide by all ordinances of the
City of Meridian and the property shall be subject to
deannexation if the owner or his assigns, heirs, or
successors shall not meet the conditions contained in the
Findings of Fact and Conclusions of Law, this Development
Agreement, and the Ordinances of the City of Meridian.
DATED The date, month and year first appearing.
DEVELOPER
By
Andrew D. Byron
DEVELOPMENT AGREEMENT Page - 14
July 15, 1994
CITY
By
GRANT P. KINGSFORD, MAYOR
By
WILLIAM G. BERG JR., CITY CLERK
STATE OF IDAHO )
SS.
County of Ada )
On this day of , 1994, before me,
the undersigned, a Notary Public in and for said State,
personally appeared ANDREW D. BYRON, known, or proved to me, to
be a partner of the General Partnership that executed this
instrument and the person who executed the said instrument on
behalf of said corporation, and acknowledged to me that such
General Partnership executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year in this certificate first
above written.
SEAL
NOTARY PUBLIC FOR IDAHO
RESIDING AT:
STATE OF IDAHO )
SS.
County of Ada )
On this day of , 1994, before me,
the undersigned, a Notary Public in and for said State,
personally appeared GRANT P. KINGSFORD and WILLIAM G. BERG, JR.,
Mayor and City Clerk of the City of Meridian, known to me to be
the Mayor and City Clerk of the City of Meridian that executed
this instrument and the persons who executed the said instrument
DEVELOPMENT AGREEMENT Page - 15
July 15, 1994
on behalf of said corporation, and acknowledged to me that said
City of Meridian executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed
my official seal, the day and year in this certificate first
above written.
SEAL NOTARY PUBLIC FOR IDAHO
RESIDING AT MERIDIAN, IDAHO
DEVELOPMENT AGREEMENT Page - 16
July 15, 1994
EXHIBIT "B"
TO THE DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF MERIDIAN, IDAHO
AND
AVENUE ONE
This subdivision is for 125 single-family dwelling units with an
overall density of 3.0 dwelling units per acre. The DEVELOPER
shall:
1. Tile those portions of the Rutledge Canal which are located
wholly or partially within the subdivision or form a portion
of the subdivision boundary in accordance with approved
construction plans to be submitted with the final plat.
2. Extend and construct water and sewer line extensions to serve
the property and connect to Meridian water and sewer lines in
accordance with approved construction plans to be submitted
with the final plat.
3. Construct all street improvements within the subdivision in
accordance with the requirements of the Ada County Highway
District.
4. Dedicate the necessary land from the center line of West
Ustick Road for public right-of-way in accordance with the
requirements of the Ada County Highway District.
5. Pay any development fee or transfer fee adopted by the CITY.
6. Meet the requirements and conditions of the Findings of Fact
and Conclusions of Law and meet the Ordinances of the CITY.
7. Berms and landscaping on entrances shall be provided and
maintained by the Homeowners Association.
8. Pressurized irrigation is to be provided to all lots within
this subdivision. Evidence of approvals from appropriate
irrigation district/canal company and downstream water users
shall be submitted to the CITY with the final plat.
9. Construct and install a six-foot cedar or similar wood fence
around the perimeter of the property.
EXHIBIT "B
DAKOTA RIDGE SUBDIVISION DEVELOPMENT AGREEMENT Page - 1 of 2
10. Construct any pedestrian pathways as may be depicted on the
final plat in accordance with the requirements of the
ordinances of the CITY.
11. Construct all planting strips and reserve strips as depicted
on the final plat in accordance with the requirements of the
ordinances of the CITY.
12. Convey to the CITY or to Joint School District No. 2, as the
CITY may direct, approximately four acres of its real property
in the location and configuration as is depicted on Exhibit C
for use by the CITY and/or the School District as a park
and/or school site in accordance with the provisions of
Section 12 of this Agreement.
EXHIBIT "B"
DAKOTA RIDGE SUBDIVISION DEVELOPMENT AGREEMENT Page - 2 of 2
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Exhibit C to the Development Agreement by and Between
the City of Meridian, Idaho, and Avenue One
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REVISED PRELIMINARY PLAT
l DAKOTA RIDGE SUBDIVISION J ��
ROYLANCE AND ASSOCIL.ATES PA OO�
Engineers Surveyors andplennere
4619 Emerald Sulb 0-2 Boles Idoho BJ706 (208) 336-7J90
EXHIBIT "A"
TO THE DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF MERIDIAN, IDAHO
AND
AVENUE ONE
Lot Two (2) in Section Three (3), Township Three (3)
North, Range One (1) West of the Boise Meridian, in Ada
County, Idaho, except that portion thereof deeded to the
Boise Valley Traction Company.
EXHIBIT "A"
DAKOTA RIDGE SUBDIVISION DEVELOPMENT AGREEMENT
EXHIBIT "A"
TO THE DEVELOPMENT AGREEMENT
BY AND BETWEEN THE
CITY OF MERIDIAN, IDAHO
AND
AVENUE ONE
Lot Two (2) in Section Three (3), Township Three (3)
North, Range One (1) West of the Boise Meridian, in Ada
County, Idaho, except that portion thereof deeded to the
Boise Valley Traction Company.
EXHIBIT "A"
DAKOTA RIDGE SUBDIVISION DEVELOPMENT AGREEMENT